Citation Nr: 20042791 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 14-14 930 DATE: June 24, 2020 REMANDED Entitlement to an increased rating for left scapular bursitis, currently evaluated as 10 percent disabling, is remanded. Entitlement to service connection for reactive airway disease is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1984 to May 2004. The Board of Veterans’ Appeals (Board) remanded the issues on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in November 2015. The case has since been returned to the Board for appellate review. In November 2018, the Veteran appointed the North Carolina Division of Veterans Affairs (as reflected in a Department of Veterans Affairs (VA) Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative). The Board has recognized the change in representation. Failure to report to VA examinations Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160 (b). When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655 (a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. In this case, an examination was necessary to establish entitlement to the benefits sought because the examination was necessary to address the crucial question of whether the Veteran’s respiratory condition is related to his active duty service and the current manifestations of his service-connected left scapular bursitis. The evidence of record was not sufficient to reach a decision on these issues. Regarding whether good cause was shown for the Veteran’s failure to report to his scheduled VA examinations in January 2016, the Veteran was required to cancel his scheduled examinations as he was an employee of the VA medical center (VAMC) in Durham, North Carolina. In March 2016, a VA examination inquiry from the VAMC in Fayetteville, North Carolina noted that they were unable to schedule a VA examination for the claims on appeal as they were unable to contact the Veteran. The March 2016 entry noted that there was differing contact information. The record shows that the Veteran had three different addresses during this time period and there were multiple instances of returned mail in the claims file. As such, the Board finds that it appears that the Veteran had good cause for his failure to report to the necessary VA examination. As such, the Board finds a remand is necessary for VA examinations. 1. Entitlement to a disability evaluation in excess of 10 percent for left scapular bursitis is remanded. The Veteran asserts that his left scapula bursitis is more severe than it is currently rated. He maintains that he has increased pain in the area and he is unable to do anything strenuous. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) in Mitchell v. Shinseki explained that functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. 25 Vet. App. 32 (2011). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Id. Further, the Court issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that an adequate VA examination of the joints must include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59. The Court also issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) which is applicable to this case. In Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). As such, on remand, the AOJ must ensure that the most recent VA examination complies with the requirements as set forth in both Correia and Sharp. 2. Entitlement to service connection for reactive airway disease is remanded. The Veteran contends that he has a lung disability, which he asserts is chronic bronchitis, and he also maintains in the alternative, he has a reactive airway disease, that was caused by his service in the Persian Gulf. In April 2011, the Veteran underwent a VA examination and was diagnosed with reactive airway disease. The examiner opined that the Veteran’s reactive airway disease was not caused by or the result of his Gulf War service as the Veteran’s Gulf War exposures were 10 years prior to the development of this condition. Also, reactive airway disease is usually an allergic reaction. Nevertheless, the Veteran claimed primarily that his pulmonary/lung disorder was chronic bronchitis, and that he had this disorder yearly since 1986, beginning in service. He also asserted that because he worked as a medic/nurse in service, he was often supplied with Z-packs and other medication to treat him for his condition. These contentions were not addressed, nor was his claim that this was a continuous condition since service, not related to his Persian Gulf service. Therefore, this VA examination was incomplete and inadequate for evaluation purposes. The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the current severity of the Veteran’s service-connected left scapular bursitis. The claims folder must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran’s documented medical history and lay statements. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected left shoulder disability under the rating criteria. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. (a.) The examiner should provide the range of motion in degrees for the left shoulder. In so doing, the examiner should test the Veteran's range of motion in active motion and passive motion, and state whether there is pain with weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (b.) The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups for the left shoulder. Any additional impairment on use or during flare-ups should be described in terms of the degrees of additional range of motion lost. The examiner should specifically describe the severity, frequency, and duration of flare-ups; identify the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 2. Schedule an appropriate VA examination to determine the etiology of any restrictive airway disease/pulmonary disease the Veteran may have. The claims folder must be made available to the examiner for review of the case, and the examination report should include discussion of the Veteran’s documented medical history and lay statements. (a.) The examiner is requested to identify any pulmonary diagnosis, to include chronic bronchitis, as indicated by the evidence of record. For each pulmonary disorder identified, provide an opinion as to whether it is at least as likely as not (probability of 50 percent or more) of service onset or otherwise related thereto. The examiner should consider and discuss the Veteran’s contentions that his respiratory disorder was present in service and chronically thereafter. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.